The Occupational Safety and Health Administration (OSHA) has launched a National Emphasis Program (NEP) to focus its enforcement efforts on worksites that put the greatest number of workers at risk for contracting COVID-19, as well as employers that retaliate against workers for complaining about safety violations. Announced last week, the new program was created in response to an executive order issued by President Joe Biden.
The president’s order
On Jan. 21, 2021, President Biden directed OSHA to immediately issue new COVID-19 guidance, and to target enforcement to protect a greater number of workers from COVID-19 hazards. OSHA released new guidance shortly thereafter, and it is now rolling out the targeted enforcement program. Biden also directed the agency to investigate whether a new, temporary COVID-19 standard would be necessary to protect workers; the deadline to issue a new standard was March 15.
National Emphasis Program
The new NEP will prioritize for investigations those worksites that put the largest number of workers at risk for the virus. The majority of the inspections will continue to occur in general industry, particularly healthcare, based on current OSHA enforcement data showing higher COVID-19-related complaints, referrals and severe incident reports at healthcare worksites. Inspections involving deaths or multiple hospitalizations due to occupational exposures to the virus will also be a top priority. In addition, employers who retaliate against workers for complaints about unsafe or unhealthy conditions or for exercising other rights under federal law will be targeted for enforcement.
NEP will include new inspections as well as follow-up inspections of worksites that were investigated in 2020 and focus on abatement of COVID-related hazards. Many state OSHA programs have adopted programs similar to NEP, and OSHA strongly encourages other state programs to adopt NEP (though it is not required).
To select worksites for inspections, OSHA Area Offices will work off master lists of randomly selected employers in industries where employees may have a high frequency of close-contact COVID-19 exposures as well as employers who reported elevated rates of illness on their CY2020 Form 300A.
Industries to be targeted within the healthcare arena include physicians’ offices (except mental health specialists), dental offices, home healthcare services, ambulance services, hospitals, nursing care facilities, residential intellectual and developmental disability facilities, assisted living facilities and continuing care retirement communities. Outside of healthcare, targeted industries will include meat and poultry processing plants, supermarkets and other grocery stores, discount department stores, general warehousing and storage entities, temporary help services, restaurants and correctional institutions. To a lesser extent, OSHA will target employers in the construction, agriculture, forestry, fishing and various manufacturing industries. OSHA Area Offices can add establishments to the master lists based on their local knowledge of establishments, referrals from the local health department, other government agencies or the media, previous OSHA inspection history or other factors. The agency will perform programmed inspections using either on-site or a combination of on-site and remote methods.
In addition to programmed inspections, OSHA will prioritize inspections of COVID-19 fatalities and catastrophes as well as COVID-19 complaints or referrals. This will extend to companies that do not fall into high-risk categories.
Part of NEP’s focus is to ensure workers are protected from retaliation for filing a complaint by providing those workers with information and referrals. Workers who request inspections, complain of COVID-19 exposure or report injuries, illnesses or retaliation will be informed of their protections under whistleblower statutes and referred to www.whistleblowers.gov for more information, including how to file a retaliation complaint. If the worker alleges some form of retaliation, the Area Office is required to submit a referral to the Regional Whistleblower Protection Program.
NEP will remain in effect for up to a year. As the pandemic subsides, OSHA may reassess the program and choose to amend or cancel it.
“With more people being vaccinated and the number of infections trending down, we know there is light at the end of the tunnel,” Principal Deputy Assistant Secretary of Labor for OSHA Jim Frederick said in a statement announcing NEP. “But until we are past this pandemic, workers deserve a Labor Department that is looking out for their health.”
If you have questions about how NEP will impact your business, or if you have general questions about OSHA compliance or you are looking to contest an OSHA citation or prepare for the OSHA inspection process, give us a call. The OSHA lawyers at Sheehy Ware and Pappas have deep expertise in all OSHA matters.